CLOSE X
RSS Feed LinkedIn Instagram Twitter Facebook
Search:
FMG Law Blog Line

Posts Tagged ‘human resources’

Is Your Attendance Policy Too Rigid?

Posted on: September 6th, 2018

By: Christopher Curci

Employers need to be mindful of both the Family Medical Leave Act (“FMLA”) and Americans with Disabilities Act (“ADA”) when considering how to enforce their attendance policies.  When an employee requests time off from work to attend to a medical condition, most employers will consider the request as one for medical leave under the FMLA.  However, what happens if the employee has exhausted his or her FMLA leave or is not eligible for FMLA leave.  Many employers will simply conclude that the employee is not eligible for FMLA leave without considering whether the ADA requires the leave as a reasonable accommodation.  This common mistake often results in a violation of the ADA.

For example, in August 2018 the EEOC filed a lawsuit against Stanley Black & Decker for terminating an employee who took leave for medical treatments related to her cancer.  To qualify for FMLA leave, the employee must have been employed with the company for at least one year and worked at least 1,250 hours during the prior year.  In the Stanley Black & Decker lawsuit, the employee requesting leave had been employed for less than one year.  When she asked Human Resources what her options were to receive her medical treatments, she was correctly told that she was not eligible for FMLA leave.  However, Human Resources did not consider whether the requested leave was a reasonable accommodation under the ADA.

What happened?  The employee exceeded her allowed vacation days to undergo her cancer treatments and Stanley Black & Decker terminated her employment for excessive absenteeism in violation of its attendance policy.  Then what happened?  The EEOC filed a lawsuit against Stanley Black & Decker for violating the ADA.

Per the EEOC, Stanley Black & Decker’s attendance policy “does not provide exceptions for people who need leave as an accommodation to their disability.”  EEOC Regional Attorney Debra M. Lawrence said, “Employers can run afoul of the ADA if they have a rigid attendance policy that penalizes employees taking leave as a reasonable accommodation for their disabilities.”

Inflexible leave policies that discriminate against individuals with disabilities is one of six national priorities identified by the EEOC’s Strategic Enforcement Plan.  The take away: when an employee requests leave due to a medical condition, employers must consider both the FMLA’s leave requirements and the ADA’s reasonable accommodation requirements.

Christopher Curci practices Labor & Employment law in Pennsylvania and New Jersey and is a member of  Freeman Mathis & Gary’s Labor and Employment Law National Practice Section.  He represents employers in litigation and advises clients on all aspects of employment law.  He can be reached at [email protected].

 

Guns in Workplace: Primer for Employers in PA & NJ

Posted on: April 12th, 2018

By: John P. McAvoy

Presently and tentatively, Pennsylvania and New Jersey do not have guns-at-work laws. There are, however, gun laws in place in both states that similarly impede an employer’s ability to control the workplace; namely, the states’ right-to-carry laws.

New Jersey has some of the most restrictive right-to-carry laws in the country. For starters, the state does not allow individuals to open carry handguns. The state is also known as a “may issue” state, which means the chief police officer of a city or county, or the superintendent of the state police, has discretion in determining whether to issue a concealed weapons permit to an applicant. New Jersey law generally forbids any person to “ha[ve] in his possession any handgun …, without first obtaining a permit to carry the same.” N.J.S.A. § 2C:39-5(b). While state law provides certain exceptions to this general ban—including one for “keeping or carrying [a firearm] about [one’s] place of business, residence, premises or other land owned or possessed by him,” id. at § 2C:39-6(e), these exceptions do not allow the concealed carrying of a handgun in public without first obtaining a permit, and it is nearly impossible for an individual to obtain a handgun carry permit in New Jersey. See generally id. at §§ 2C: 58-3; 58-4; and N.J.A.C. 13:54-2.4(b) (outlining numerous screening and training requirements an applicant must satisfy in order to be eligible for a handgun carry permit, including a ‘justifiable need’ to carry a handgun). New Jersey’s right-to-carry laws are so restrictive that the state does not have or need separate laws governing firearms on private property, including parking lots, much less in the workplace. On their face, these laws make it unlawful for almost all employees to possess concealed firearms in the workplace.

Pennsylvania’s right-to-carry laws are far less exacting than their New Jersey counterparts. Unlike New Jersey, Pennsylvania law is silent on the legality of openly carrying a firearm, making it de facto to do so in all places except Philadelphia. It is also a “shall issue” state. This means that while a person needs to obtain a license to carry a handgun, the granting authority (i.e., the sheriff or police chief) has no discretion to deny an applicant provided he or she meets the necessary character and fitness requirements. See 18 Pa. C.S. § 6109. Unlike New Jersey, there is no requirement that an applicant demonstrate “good cause” for the weapon. Instead, law enforcement has 45 days to investigate an applicant’s background to determine eligibility. See id. Moreover, and with the limited exception of commonsense places designated by statute as off-limits, including schools, correctional facilities, and courts, id. at §§ 912-913, 5122; 50 P.S. § 4605; et al., any employee with a license to carry may come to work with a gun concealed on his or her person.

While Pennsylvania’s right-to-carry laws are relatively liberal, there are no state laws that force an employer or business to allow or prohibit guns on its property. While 20 states have laws that regulate whether employees have the right to transport and store licensed, concealed weapons in their locked vehicles in an employer’s parking lot, the majority of states – including Pennsylvania – do not.  Without an express statute on point, courts generally give employers the right to control the workplace. As such, employers are free to impose policies allowing or restricting the possession of weapons in vehicles parked on company property and/or in the workplace.

In 2015, the Superior Court of Pennsylvania addressed an employer’s efforts to control the workplace by enforcing its weapons restrictions policy. In Stewart v. FedEx Express, 114 A.3d 424 (Pa. Super. 2015), the Superior Court upheld the right of FedEx to terminate the plaintiff for carrying a handgun in the glove compartment of his personal vehicle while performing work for FedEx. Id. at 424. FedEx’s policy prohibits employees from having firearms or weapons on company property, in company vehicles or in company buildings, unless authorized by FedEx security. Id. at 426. In so holding, the Superior Court noted that Pennsylvania is an at-will state and rejected the plaintiff’s constitutional claim that he had an unrestricted “right to bear arms,” even at work, and reasoned that “neither the Second Amendment to the United States Constitution, nor the Pennsylvania Constitution, bestows on any person the right to carry a concealed firearm or transport a loaded firearm in a vehicle.” Id. at 428-29. Moreover, the Court noted that Pennsylvania has no right-to-carry law that restricts employers from prohibiting firearms on their property or while performing work duties. Id. at 429.

Pennsylvania and New Jersey are ‘employment at-will’ states; meaning, employers may generally terminate an employment relationship at any time and for any reason. Therefore, employers in both states are free to terminate an employee for any reason regardless of whether there is a specific policy on point. Nevertheless, it is a good idea for employers in Pennsylvania and New Jersey to follow FedEx’s example and take similar steps to control the workplace.

Pennsylvania employers in favor of guns in the workplace may impose policies relative to same. These policies should detail the type of weapons permitted in the workplace and in vehicles parked on company property, and state that the company policy is subject to the licensing requirements of state law. These policies should also set forth the employer’s expectations with respect to the handling and storage of weapons on company property and in the workplace. To limit any potential confusion with respect to the company’s expectations and what is and is not permissible, it is recommended that employers make their policies as detailed as possible.

New Jersey’s right-to-carry laws are so restrictive that is almost always unlawful for an employee to possess a firearm in the workplace. As such, most New Jersey employers cannot authorize their employees to possess a firearm in the workplace without violating state law. However, to avoid any ambiguity and as an added layer of protection from liability, New Jersey employers may also adopt policies to better control the workplace.

It is important for Pennsylvania employers opposed to the idea of guns and other weapons in the workplace take steps to further their interests. To that end, Pennsylvania employers may implement policies that prohibit employees from having firearms or weapons on company property, in company vehicles or in company buildings. Absent such policies, there is nothing prohibiting a properly licensed Pennsylvania employee from bringing his or her concealed gun to the workplace.

It is recommended that the policies adopted and implemented by employers opposed to guns and weapons in the workplace in both states clearly explain that all employees, including those with licenses to carry, are forbidden from having firearms or weapons on company property, in company vehicles, or in company buildings, unless expressly authorized by the employer. It is also a good idea for these policies to provide that violation of the company’s weapons policies is grounds for immediate termination, as it would make the process of terminating an employee for-cause much cleaner and could allow the employer to save on future litigation and unemployment benefits costs associated with the termination. This is because employees that are terminated for-cause are generally ineligible to receive unemployment benefits and will have a harder time asserting a meritorious wrongful termination lawsuit against their former employers.

Given this is a rapidly changing and developing area of the law, it is also suggested that employers charge someone in their human resources and/or compliance departments with staying current on the gun control regulations. Absent immunity, complying with a law that allows employees to bring concealed firearms to the employer’s property can increase legal risk. In contrast, noncompliance with a gun law can lead to civil liability or criminal penalties in some states. Therefore, it is important that employers stay apprised of the rapidly changing gun laws of each state in which they conduct business. The person charged with this responsibility should understand the impact the new gun control law might have on the business and recognize what, if any, changes in the law require an amendment to company policies.

If you have any questions or would like more information, please contact John McAvoy at [email protected].